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A Signed Draft May Revoke a Prior Will

Does my draft will automatically revoke any prior wills I made?  What if I sign it, but improperly without witnesses? Can the court “cure” this deficiency if it’s clearly my wish to revoke my previous will?

In the case of Horton v. Bruce (2017 BCSC 712), the deceased (Ms. Shepherd) left two potential wills: a 1993 will which was executed in accordance with the requirements in place at that time, and a 2011 draft unwitnessed will (the “2011 Draft”). She had signed the 2011 Draft, but it lacked the witnesses needed to comply with wills legislation.

At issue was whether the court should find that the 2011 Draft indicated her intention to revoke the 1993 will, and whether the court should “cure” the deficiencies of the 2011 Draft. Importantly, no one appeared on behalf of the defendants, some of whom agreed to abandon a claim for relief so long as the curation of the 2011 Draft was limited to the revocation clause (resulting in estate distribution through intestacy).

Section 58 of the Wills, Estates and Succession Act permits the court to “cure” a potential will of deficiencies: i.e. to order a record or document or writing or marking on a will or document to be fully effective, that even if the making, revocation, alteration or revival of a will does not comply with the Act.

Revoking a will can be done in a number of ways, the relevant two in this case being:

  1. through the common law presumption of destruction; or
  2. through application of the “curative principle” set out above from section 58 of the Act.

Madam Justice Maisonville considered various cases on the points above, setting out the relevant law as it applied. She concluded that Ms. Shepherd intended that the 2011 Draft revoke the 1993 will, and found support for the presumption of destruction, based on the evidence: the original 1993 will was not found in Ms. Shepherd’s possessions (she presumably had destroyed it), she had left the 2011 Draft with her close friend and intended administrator, and she had reiterated to her administrator on many occasions her wishes as set out in the 2011 Draft. In ordering that the 2011 Draft be cured only for the purpose of admitting the revocation clause, Justice Maisonville provided the following conclusion:

[68]         I find here that it was the fixed and deliberate intention of Ms. Shepherd to revoke the 1993 Will through the 2011 Draft.  I rely upon the factors as set out in George, Re Young Estate and Beck Estate (Re). 

[69]         This case is similar to Re Young Estate, as Ms. Shepherd signed the document, the 2011 Draft, and ensured that Ms. Horton, the alternate executor, had a copy of it.  Additionally, the fact that Ms. Shepherd had explained her reasoning for changing the distribution and referred to the 2011 Draft as her Will in discussions with Ms. Horton clearly establishes she had the intention to revoke the 1993 Will.  As well, I find support for the presumption of destruction, as Ms. Shepherd had possession of the original 1993 Will and it was not found amongst her possessions.  I also find that I can apply s. 58 of WESA to cure only the revocation clause of the document.  As a consequence, I make the following orders:

i)       I cure the 2011 Draft to admit it as a testamentary instrument solely for the purpose of admitting the revocation clause to revoke the 1993 Will.

ii)     I also declare that the estate of Jean Agnes Shepherd proceed as an intestacy under the provisions of WESA scheme for distribution of the estate.

iii)    I appoint Ms. Horton as the administrator without bond as a bond is not required, pursuant to s. 128 of WESA. 

iv)   I also order special costs of the estate in these circumstances where there was a need to take court proceedings instead of a desk order which derives from the failure of the testator’s actions, as is the case here.